That the finance minister, Mathias Cormann, “misdirected himself” by issuing a direction to release $122m to fund the postal survey under section 10 of the Appropriations Act on the grounds that it was both “urgent” and “unforeseen”.

That the expenditure could not be taken to be “urgent” because the Senate was sitting and able to see a special appropriations bill to fund the survey, and because the deadline of 15 November was arbitrary and self-imposed.

That it could not be seen as “unforeseen” because Cormann had conversations with colleagues as early as March about “alternative measures” to deliver on the promise of a plebescite, and by the wording of his press releases on 8 and 9 August clearly meant that the ABS postal survey be taken as a delivery of that promise and to in effect be considered a plebiscite.

That the Australian Bureau of Statistics was not authorised to undertake this postal survey because it was a binary yes/no question and could not therefore be properly called a statistic, and because the ABS was not established to survey matters of personal opinion.

That the Australian Electoral Commission was not authorised to provide electoral roll information to the ABS for anything other than the gathering of statistical information, which this was not, and was not authorised to provide the enrolment details of silent electors.

We’ll see you back here tomorrow morning for the government’s response.

Richardson asks that “given the urgency” the court restrict its decisions this week to the key question of whether the survey is unlawful, and then puts off the full finalisation of relief to a single judge.

And with that, the court has adjourned. It will resume at 10.15am tomorrow to hear the case of the commonwealth.

Richardson about to wrap up, but she finishes by addressing the standing of the plaintiffs she represents – Senator Janet Rice and Australian Marriage Equality – to challenge the matter in the high court.

She argues Rice has a special interest because the government, in its own admissions, has bypassed the Senate, and that is of special interest to Rice.

‘Unprecedented in Australian history’

Richardson has turned to another line of argument that the funding the postal survey through s.10 of the Appropriations Act was unlawful.

She says the Appropriation Act can only be used to fund ordinary annual services, being an activity that a government department or body has done before.

It is an agreed fact that nothing like the voluntary postal survey has been done before.

Richardson argues:

It must be common ground that in substance if not form what the ABS has been directed to do is conduct a plebiscite …

There’s no dispute between the parties that the activity the ABS has been asked to conduct is unprecedented in Australian history, that being a survey to seek the opinion of 16 million people on the electoral roll.

The commonwealth case put forward a number of examples of the ABS undertaking similar surveys before, but the largest it could point to was a poll of 60,000 people on the national anthem in February 1974. That’s 0.3% of the number of people to be included in the voluntary postal survey, Richardson said.

She adds:

The only three instances in Australia of a plebiscite being held have all been subject to special legislation.

The Turnbull Government is committed to deliver on its pre-election promise to give the Australian people a say on whether or not the law should be changed to allow same-sex couples to marry.

Richardson says that in light of those statements the only element that could be considered unforeseen is the involvement of the ABS, and argues that it is the expenditure, not the agency that will spend it, which must be unforeseen for a release of funds under s.10.

She concludes:

...it’s apparent that no decision maker in the shoes of the minister acting reasonably could have reached that view.

Richardson is now arguing that s.10 of the Appropriation Act should be read as intended to fund ordinary government operation.

If it is not so limited, “it would effectively amount to a power to appropriate for any purpose at all.”

Unforeseen delivery of a long-term policy

Richardson says that Mathias Cormann’s own affidavit, which forms part of the special case documents, supports the argument that the expenditure could not have been unforeseen because the government was actively looking at alternative means to “give the Australian people a say on marriage equality”.

Richardson said this proves that “it was not just a policy of compulsory plebiscite or not at all”.

From Cormann’s statement, read aloud by Richardson:

From about March 2017 to August 2017 I was aware of suggestions from parliamentary colleagues to alternative means by which the government’s policy might be pursued.

Cormann continues:

At the time that (appropriations bill) was introduced it was not the government’s position that the ABS should conduct a survey and I did not foresee that the government would rule on 7 August that the ABS should conduct a postal survey.

Richardson argues that is a very narrow reading of “unforeseen”.

It’s plain that the minister has defined what must be unforeseen narrowly and erroneously, that is, he has focused on the particular body that must incur the expenditure, that is the ABS.

She argues that the body requiring the expenditure doesn’t matter – the government knew it wanted to hold some form of plebiscite or postal survey and that some government authority would have to conduct that survey and bear the cost.

Richardson says the act is not written just to fund unforeseen turns of government policy and cites a number of more “orthodox” uses, such as releasing funding to respond to a natural disaster or international incident.

Basically, she argues: Cormann can’t both say he is delivering on a commitmentto give the Australian people a say when announcing the postal survey, and claim that the survey itself was unforeseen.

Justice Geoffrey Nettle with a hypothetical on the limits of the standing appropriations power under section 10 of the act.

What if, just for arguments sake, there is an escalation of tensions in Asia that necessitates the expenditure of urgent and unforeseen funds for defence, possibly for some kind of new and powerful weapon.

Just a hypothetical example, you understand. No reference to current events.

‘An absurd and unwarranted degree of precision’

Richardson says that even if unforeseen is not taken to be a jurisdictional fact, the commonwealth’s interpretation puts “an absurd and unwarranted degree of precision” on the meaning of the word “unforeseen” so as to make section 10 of the Appropriations Act unreasonably broad.

Richardson:

What the government says is what must have been unforeseen is that cabinet would make a decision on 7 August 2017 that the ABS should conduct a voluntary postal plebiscite.

She criticises the commonwealth’s focus in its defence on the involvement of the ABS, which on the agreed facts is the only element of the policy not considered prior to the closing off of the appropriations bill No 1 and No 2.

The ABS and other government-run institutions are considered to be part of government, she says; they have “no distinct legal personality” so the involvement of the ABS or otherwise is not a material change.

Richardson argues that while the question of whether expenditure is urgent under s.10 of the Appropriations’ Act is at the discretion of the minister, whether it was unforeseen remained a question of “jurisdictional fact”.

Justice Keane questions that it’s a jurisdictional fact. “It says to his (the minister’s) satisfaction.”

Chief justice chips in Kiefel:

The ordinary meaning is that the minister is satisfied that there is an urgent need for expenditure on account of, for the reasons given in a) and b)

Richardson says that because it’s a “Henry VIII clause”, saying unforeseen is a “jurisdictional fact” is the “preferred construction.”

The unforeseen argument

Kate Richardson SC, acting for Australian Marriage Equality and senator Janet Rice for the Human Rights Law Centre, is on her feet now.

Her submissions will focus on the question of the expenditure for the survey being unforeseen, in the meaning of s.10. 1) b) of the Appropriations Act 2017-18.

In the statement of claim, the HRLC argues that “it is the need to put public funds toward the ‘payment for expenses’ in the conduct of a postal plebiscite that must be unforeseen,” rather than the liability of the Commonwealth attached to the activity of any particular agency.

If the act allows “that expenditure on the specific form of an activity and on a specific set of terms” must be unforeseen, it argues, then it could be applied to such a broad range of circumstances that the limitation of “unforeseen” in the Act “would impose no real constraint at all.”

She argues that “urgent” is a separate and distinct test to “unforeseen” but that the finance minister, Mathias Cormann, appears to have conflated the two.

That is, he appears to have reasoned that the expenditure was urgent because it was unforeseen.